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holding that letters sent to commissioner, where letters were delegated to other prison officials, were insufficient to establish supervisory liability
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98 Civ. 3634 (JGK)
March 29, 2002
OPINION AND ORDER
The plaintiff, Anthony D. Amaker, is an inmate who is presently incarcerated at. Clinton Correctional Facility ("Clinton") and was previously incarcerated at Green Haven Correctional Facility ("Green Haven"). He brings this action pro se pursuant to 42 U.S.C. § 1981, 1983, 1985 and 1986 alleging that the defendants, all of whom are current or former prison officials at Green Haven or Clinton or supervisors at the New York Department of Correctional Services ("DOCS"), retaliated against him for filing grievances and lawsuits against prison officials; denied him access to the courts; subjected him to cruel and unusual punishment by denying him exercise, providing him with inadequate lighting and ventilation in the Special Housing Unit ("SHU") and inadequate medical treatment for his eyes, and by transferring him from Green Haven to Clinton without a doctor's order; and denied him the opportunity to practice his religion while at Clinton.
There are currently three motions pending before the Court. The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all of the plaintiff's pending claims. The plaintiff moves pursuant to Rule 56(f) for additional. discovery to oppose the defendants' summary judgment motion. The plaintiff cross-moves pursuant to Rule 56 for summary judgment on several of his claims.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Finally, although the same standards for summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest'") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The pro se party must also be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment, unless the plaintiff's papers establish that the pro se litigant understood the nature and consequences of summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999)Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994). In this case, by Notice to Pro Se Litigant Opposing Motion for Summary Judgment dated April 13, 2001, tne plaintiff was advised of the procedures for responding to a motion for summary judgment, including the requirement to submit a response to the defendant's Rule 56.1 Statement and to submit counter-evidence. The plaintiff also has a number of actions pending before this Court and has demonstrated that he understands the procedures for summary judgment. See Amaker v. Coombe, No. 96 Civ. 1622; Amaker v. Haponik, No. 98 Civ. 2663. The plaintiff has submitted an appropriate response to the defendants' motion in this case, together with supporting affirmations, and has cross-moved for summary judgment.
II.
The Court has set out a number of the relevant facts and allegations in this case in its prior decisions, familiarity with which is assumed. See Amaker v. Goord, No. 98 Civ. 3634. 2000 WL 718438 (S.D.N.Y. June 5, 2000); Amaker v. Goord, No. 98 Civ. 3634, 1999 WL 511990 (S.D.N.Y. July 20, 1999). The following facts are either undisputed or are matters of public record, unless otherwise indicated.
The Court previously denied a motion to dismiss that was based on an allegation that, with one exception, the plaintiff had failed to exhaust his prison grievance remedies. See 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 122 S.Ct. 983, 987-92 (2002). The plaintiff alleged that he had exhausted those remedies and, in view of the disputed facts, the Court found that the issue could not be decided on a motion to dismiss. See Amaker v. Goord, 2000 WL 718438, at *2. The defendants have not attempted to establish on this motion for summary judgment that the plaintiff's statements that he exhausted his remedies are untrue. The defendants have not moved for summary judgment on the grounds that the plaintiff failed to exhaust his prison grievance remedies.
A.
The plaintiff is an inmate who was been incarcerated since November 3, 1989, and was incarcerated at Green Haven from November 9, 1994 through June 12, 1998. See Declaration of Douglas B. Botsford dated April 2, 2001 ("Botsford Decl."), at ¶ 7 Ex. A. On November 19, 1995, after a prison disciplinary proceeding, the plaintiff was found guilty of assault on prison staff, violent conduct and attempted possession of a weapon arising out of an incident on November 3, 1995 involving the plaintiff and several prison staff members. See Hearing Disposition dated November 19, 1995, attached as Ex. B to Declaration of Donald Selsky dated April 4, 2001 ("Selsky Decl."). As a result of his conviction, the plaintiff was sentenced to 60 months in the Special Housing Unit ("SHU") and 60 months loss of privileges, later commuted to 30 months in the SHU and 30 months loss of privileges. See id. Review of Superintendent's Hearing dated January 25, 1996, attached as Ex. C to Selsky Decl.
The plaintiff has raised a number of challenges to this disciplinary proceeding in another action before this Court, alleging, among other things, that the proceeding violated his rights to due process and was based on false and retalitory misbehavior reports, but the Court dismissed these claims on a motion for summary judgment. See Amaker v. Coombe, 96 Civ. 1622. Moreover, the plaintiff was charged in New York state court with assaulting one of the prison officials involved in the November 3, 1995 incident and was subsequently found guilty of Assault in the Third Degree on the oasis of those charges. See People v. Amaker, 98-842 D CR (N.Y.App. Term. Oct. 26, 1998). This conviction corroborates the findings in the disciplinary proceeding.
While in the SHU, the plaintiff has filed numerous actions against various prison officials at Green Haven, most of which he has been pursuing pro se. These actions include three before this Court; a separate petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 before a different judge of this Court, challenging his disciplinary conviction of confinement in the SHU; an Article 78 Proceeding in New York State Supreme Court, challenging the same conviction and confinement; a § 1983 action in the United States District Court for the Eastern District of New York; and an action before the New York State Court of Claims alleging, among other things, failure to prevent the theft of property. The plaintiff has apparently chosen to employ his family, at times, to help him maintain legal records, file legal documents and photocopy legal papers, so as not to have to use the photocopy machine or mailing facilities at Green Haven. The plaintiff has also filed numerous grievances against prison officials while at Green Haven, sometimes numbering as many as four or more in a given month, and averaging significantly more than one per month. See Log of Grievances, attached as Ex. A to Declaration of Tiffany M. Foo dated April 13, 2001 ("Foo Decl.").
B.
The plaintiff alleges that while he was in the SHU, a number of the defendants retaliated against him for filing these grievances and lawsuits by fabricating two false misbehavior reports against him. The defendant Paul Tomaszewski wrote the first misbehavior report in question on August 16, 1996, alleging that the plaintiff had violated two of the rules from the DOCS's Inmate Standards of Behavior, specifically, § 116.10, which prohibits the damage of state property, and § 113.22, which prohibits the commission of an unhygienic act. See Amend. Compl. at ¶¶ 3-5. See Declaration of Paul Tomaszewski dated April 3, 2001 ("Tomaszewski Decl.") at ¶ 10-11 Ex. B; see also 7 N YC.R.R. 270.2, attached as Ex. B to Declaration of Gayle Haponik dated April 3, 2001 ("Haponik Decl."). The report alleges that while Tomaszewski was performing his duties as a law library officer, he picked up a number of books from the law library that the plaintiff had left on his cell bars to be collected. See Misbehavior Report dated August, 16, 1996, attached as Ex. B to Tomaszewski Decl. As Tomaszewksi "began lifting the books, [he] noticed that they were covered by a white, gooey substance that appeared to be semen," and Tomaszewski had to return with latex gloves and towels to collect the books and wipe them off. Id. The plaintiff later challenged the charges in the Report, arguing that the books were wet because there had been flooding in his cell. See Inmate Grievance Complaint dated August 17, 1996, attached in Pl.'s Ex. B. The charges were ultimately dismissed with the following explanation:
I have personally checked the (11) eleven books that were removed from your cell. The books have all been cleaned and will be re-circulated in about 2 weeks. Three of the books have obvious water damage. This water damage may be a result of the flood in your tank on 8/16/96, which was confirmed by staff. The flood was not your fault.
The purpose of this letter is to direct you to keep all loaned books off the floor. The floor is dirty which dirties the books and future flooding could damage the books even further. These books are your responsibility while on loan to you. Any future damage whether intentional or unintentional will result in a misbehavior report and I will seek restitution for the books.See Letter from P. Nelson to Amaker dated August 21, 1996.
On April 26, 1997, the defendant Sergeant Skidgell issued the second misbehavior report in question, which alleged that the plaintiff had set two fires in his cell, engaged in violent conduct and threatened prison officials in violation of Sections 118.10, 104.11 and 102.10 of the Inmate Standards of Behavior. See Misbehavior Report dated April 26, 1997, attached as Ex. A, at 2, to Declaration of John Tierney dated March 2001 ("Tierney Decl."). Although the parties dispute exactly what happened on that day, they agree that the plaintiff was informed of a family visit at approximately 12:50 p.m and was asked to prepare himself. See Inmate Grievance Report dated April 26, 1997, attached as Ex. C, at 3, to Declaration of David Thacker dated March 2001 ("Thacker Decl."); Tierney Decl. Ex. B. The Misbehavior Report alleges that there was only one escorting officer available, however, and that this officer was occupied for approximately one hour because another inmate needed to be escorted to the medical room. See Misbehavior Report dated April 26, 1997, attached as Ex. A to Tierney Decl. During this period, the plaintiff repeatedly tried to gain the prison officials' attention, and began to yell. See id. The Misbehavior Report alleges that the plaintiff became belligerent and abusive and threatening during this period, and ultimately set two fires in his cell. See Misbehavicr Report dated April 26, 1997. The defendant Thacker later conducted an investigation into these charges and found the plaintiff guilty. See Thacker Decl. ¶¶ 7-12 Ex. B. However, these charges were ultimately dismissed on appeal. See Undated Review of Superintendent's Hearing for Grievance 89T2815, attached in Pl.'s Ex. B.
C.
On April 26, 1997, the defendant Deputy Superintendent Gayle Haponik was the Watch Commander on duty and was responsible for providing direction at the facility. See Haponik Decl. ¶¶ 10-13. After hearing of the plaintiff's alleged threats, violent conduct and setting of fires, Haponik directed the defendant C.O. Nagy to cancel the plaintiff's visitation. See id. The plaintiff was not allowed to visit with his family on that day. See id.
The plaintiff alleges that he had planned to transfer documents to his family to file an appeal in his Article 78 proceedings on April 26, 1997. See Amend. Compl. ¶¶ 8-11. The plaintiff did not file a timely appeal in that case. See id. ¶ IV, 8.
On June 5, 1997, the plaintiff was scheduled to
participate on a conference call on a motion in a different case in the United States District Court for the Western District of New York. See Amaker v. Foley, 98-CV-0843, slip op. (W.D.N.Y. June 10, 1997) (order), attached in Pl.'s Ex. B; see also Foo Decl. Ex. F. The plaintiff alleges that on that day, C.O. Austin informed him of a call at approximately 11:00 a.m. See Inmate Grievance Report dated June 16, 1997, attached in Pl.'s Ex B. The parties dispute exactly what happened next, but the DOCS interdepartmental memorandum that reflected a scheduling of the original telephone conference call indicates that the conference call was ultimately canceled on the instructions of Jerry McGrier, the Assistant Attorney General in that case. See Foo Decl. Ex. F. The plaintiff was not escorted to participate in any conference call on that day. See Inmate Grievance Report dated June 16, 1997; Foo Decl. Ex. A (noting that response to plaintiff's grievance was that "no phone call [was] noted")
The Magistrate Judge who decided the plaintiff's motion ultimately denied it, stating:
[A] telephone conference was scheduled for May 1, 1997 to hear argument. Plaintiff did not appear at the May 1, 1997 telephone conference. The conference was rescheduled for June 5, 1997. Again, the plaintiff did not: appear, and the motion was taken under advisement.
Upon review of the plaintiff's application (Item #44) and defendants' response (Item #46), I find no basis for imposition of any of the sanctions set forth in Rule 37 of the Federal Rules of Civil Procedure.Amaker v. Foley, 98-CV-0843, slip op. (W.D.N.Y. June 10, 1997) (order). This decision was affirmed by Judge Elfvin on August 22, 1997. See Amaker v. Foley, 98-CV-0843, slip op. (W.D.N.Y. Aug. 22, 1997).
D.
The plaintiff alleges that a number of the defendants in this case have directly or indirectly interfered with his ability to obtain his one daily-allotted hour of exercise or recreation in the yard while in the SHU. On November 20, 1997, the plaintiff filed a grievance alleging that on that day the defendants C.O. Kealty and C.O. Cruise denied him his one hour of exercise or recreation in the yard "under the ad hoc racist policy of Deputy Supt. Schneider." Pl.'s Ex. A at 12. This grievance was denied on the ground that the plaintiff had not complied with all the SHU rules and regulations due to the length of his fingernails, and this decision was affirmed on appeal. See Pl.'s Ex. A at 10, 13-14.
E.
On October 7, 1997, the plaintiff filed a grievance complaining about the lighting in the SHU. See Inmate Grievance dated October 7, 1997, attached as Pl.'s Ex. A at 2. The plaintiff's grievance was granted on December 30, 1997, and the plaintiff was informed that "[a] reflective device will be installed under the SHU bulbs in the near future." Pl.'s Ex. A at 8. The decision also stated that "CORC has been advised from further investigation that a reflective device has been installed on every SHU light," and that "[c]urrent candlelight readings taken indicate the lighting is in compliance with Directive #4009." Id.
F.
On June 12, 1998, shortly before the plaintiff's term in the SHU was to expire, the plaintiff was transferred from Green Haven to Clinton. The plaintiff filed the present action on May 21, 1998.
III.
The first issue is whether to postpone decision of the defendants' summary judgment motion and grant the plaintiff's Rule 56(f) motion for additional discovery for his opposition. It is well-established that a party resisting summary judgment on the ground that the party needs discovery in order to defeat a Rule 56(f) motion must submit an affidavit showing (1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) In his Rule 56(f) Affirmation, the plaintiff argues that the defendants have not supported their motion with various documents. However, as discussed below, the evidence is in fact more than sufficient to support the motion for summary judgment. To the extent that the plaintiff is arguing that materials should have been provided in discovery, he has failed to make the necessary showing of why he was not able to obtain those materials in the course of the lengthy discovery in this case, nor has he shown why those documents would raise a genuine issue of material fact. In any event, the plaintiff has been given ample time for discovery and discovery is complete. See also Contemporary Mission v. United States Postal Svc., 648 F.2d 97, 107 (2d Cir. 1981) (bare assertion that the evidence supporting a plaintiff's allegation is in the hands of the defendant is insufficient to justify denial of a motion for summary judgment under Rule 56(f)). Hence, the plaintiff has failed to meet his burden for a Rule 56(f) motion, and the motion is denied.
IV.
The defendants move for summary judgment dismissing the plaintiff's Eighth Amendment claims for cruel and unusual punishment based on alleged indifference to problems of eye strain and fatigue allegedly caused by poor lighting and ventilation in the SHU and alleged interference with his daily-allotted hour of exercise. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. U.S. Const. amend. VIII; see also Wilson v. Seiter, 501 U.S. 294, 297 (1991); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 102 (1976).
A.
The plaintiff raises a number of his Eighth Amendment claims as claims for inadequate medical treatment. inadequate medical treatment can constitute cruel and unusual punishment. See, e.g., Estelle, 429 U.S. at 102. In order to succeed on an Eighth Amendment claim for inadequate medical treatment, however, an inmate must show that a prison official acted with (i) "deliberate indifference" to (ii) an inmate's "serious medical needs." See, e.g., Helling v. McKinney, 509 U.S. 25, 32 (1993);Estelle, 429 U.S. at 104-05. "Objectively, the deprivation must be `sufficiently serious' in the sense that `a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1988)). Subjectively, the charged official must have a mental state "equivalent to criminal recklessness," in that the official must know of and disregard the excessive risk to the inmate's health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference. Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam) (quoting Hathaway, 99 F.3d at 553)).
In this case, the plaintiff has not produced sufficient evidence of an objectively serious medical condition arising from the lighting or ventilation in the SHU. The plaintiff has made a number of complaints about his vision, but he has not identified any evidence of any diagnosable eye conditions. To the extent that he alleges poor vision, the defendants have produced expert medical testimony that the poor lighting should not have affected the long-term vision of a person at the age of the plaintiff, who is approximately 37. See Declaration of David Robert Guyer, M.D. dated April 3, 2001 ("Guyer Decl."), at ¶ 12. The plaintiff alleges that his vision grew "weaker and weaker through eyestrain" during his approximately two-year period in the SHU, see Amend. Compl., Damages ¶ 4, but he has not produced any evidence that his eyeglass prescription changed in an appreciable manner. His corrected vision is presently 20/25, which is within normal limits. See Guyer Decl. ¶ 9.
The plaintiff alleges that he suffered from fatigue and headaches due to poor lighting in the SHU. However, he has not produced any evidence that these subjective complaints are symptomatic of any objectively serious medical conditions that may produce death, degeneration or extreme pain. See Hathaway, 37 F.3d at 66.
Moreover, to the extent that the plaintiff alleges that he had chronic headaches resulting from inadequate lighting or ventilation in the SHU, the plaintiff was referred to an outside consultation by Dr. C. Wong on March 8, 1990, and this consultant found that the plaintiff had sustained two head injuries, one in an auto accident in June 1988 and another in August 1989 when the plaintiff fell in his prison cell. See Pl.'s Medical History at 2-3, attached as Ex. A to Declaration of David Robert Guyer dated April 2, 2001 ("Guyer Decl."). Dr. Wong diagnosed the plaintiff with post-traumatic headaches resulting from those accidents but found that he was still within normal limits based on his EEG. Id. These accidents were not significant to the plaintiff's visual complaints. See Guyer Decl. ¶ 8. The defendants have also produced expert medical testimony indicating that the failure to wear glasses can also cause headaches, and that subsequently getting eyeglasses will alleviate the symptoms without permanent damage. See id. at ¶ 15. The plaintiff has not produced any evidence that the conditions of confinement in the SHU, rather than these other events, were the cause of any persistent headaches he may have had.
Moreover, the plaintiff has not produced evidence of any deliberate indifference to his actual medical problems. In response to complaints about his eyes, the medical staff at Green Haven referred him to specialists on a number of occasions, including opthamologists, neurologists and radiologists. See Guyer Decl. ¶ 11. The medical staff was not indifferent to his complaints. The conclusion they drew was that he needed vision correction, such as eyeglasses. See id. The plaintiff does not allege that he ever requested eyeglasses or contact lenses and was denied them.
Finally, Dr. David Robert Guyer, a physician licensed in the State of New York and a Professor and the Chairman of the Department of Opthamology at the New York University School of Medicine, has testified that he has reviewed the plaintiff's medical history and complaints and that "the response and the medical treatment rendered to [the plaintiff] was reasonable, appropriate and did not constitute a departure from accepted standards of medical care." Guyer Decl. ¶ 16. The plaintiff does not produce any medical evidence to the contrary, and his own statements concerning the alleged inadequacy of his medical treatment are insufficient to raise a triable issue of fact. See. e.g., Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622 (S.D.N.Y. Oct. 15, 1999) ("[A] prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim."); cf. also Muhammad v. Francis, No. 94 Civ. 2244, 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) ("It is well established that mere differences in opinion regarding medical treatment do not give rise to an Eighth Amendment violation.").
B.
The plaintiff also raises many of his Eighth Amendment claims as challenges to the conditions of his confinement in the SHU. To establish that conditions of confinement constitute cruel and unusual punishment, a plaintiff must prove both (1) a sufficiently serious deprivation and (2) that the defendants acted with "deliberate indifference." Wilson, 501 U.S. at 303-04. Thus, proof of an Eighth Amendment violation based on conditions of confinement also has both an objective and a subjective component. See Hudson v. McMillian, 503 U.S. 1, 8 (1992); Jolly v. Coughlin, 894 F. Supp. 734, 746 (S.D.N.Y. 1995), aff'd, 76 F.3d 468 (2d Cir. 1996). The plaintiff raises two basic challenges to the conditions of his confinement, one relating to the lighting and ventilation at Green Haven and another relating to the denial of exercise.
With regard to lighting and ventilation, the plaintiff correctly argues that placing an inmate in conditions of confinement with inadequate lighting or ventilation can, in some cases, violate an inmate's Eighth Amendment rights. See, e.g., Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985); Whitley v. Westchester Ct'y Correctional Facility, 97 Civ. 0420, 1997 WL 659100, at *4 (S.D.N.Y. Oct. 22, 1997).
However, this is not a case in which the conditions in the SHU with respect to lighting were so inadequate that they caused or aggravated any objectively serious medical conditions, for the reasons discussed above.See. e.g., Wilkerson v. Maggio, 703 F.2d 909. 912 (5th Cir. 1983) (per curiam) (affirming dismissal of Eighth Amendment claim for inadequate lighting where evidence failed to show that the conditions of confinement were not an etiological cause or aggravating condition of myopia, which the plaintiff suffered from); compare also Whitley, 1997 WL 659100, at *4 (allowing Eighth Amendment claim in response to a motion to dismiss where allegation was that poor ventilation aggravated condition of asthma). Further, Jeffrey Richards, the Plant Superintendent at Green Haven, has testified that from 1995 to 1997, the lighting in the SHU was provided by 67 watt bulbs, and from 1998 on, by 93 watt bulbs. See Undated Declaration of Jeffrey Richards ("Richards Decl."), at ¶ 8. The plaintiff has not demonstrated that the lighting was insufficient for him to read, and, indeed, the plaintiff produced numerous papers while confined in the SHU. The plaintiff's dissatisfaction with the lighting in the SHU does not establish an Eighth Amendment violation in these circumstances, and his claim related to the lighting conditions in the SHU must be dismissed on this ground alone.
Moreover, there is no evidence of any deliberate indifference to the plaintiff's concerns about lighting at Green Haven. The plaintiff filed a grievance on October 7, 1997 requesting better lighting in the SHU, and the plaintiff's request was granted shortly thereafter on December 30, 1997, with the result that reflective devices were installed in the SHU.See Pl.'s Ex. A at 2, 8. As noted earlier, the light bulbs in the SHU were also upgraded from 67 to 93 watts in 1998. See Richards Decl. ¶ 8.
With regard to fatigue, the plaintiff has produced no evidence whatsoever that his alleged problems with fatigue were caused by any of the conditions of confinement in the SHU.
The plaintiff's claims relating to poor ventilation are also without foundation. The plaintiff was not placed in a cell with particularly poor ventilation or with little or no free flow of air. Rather, the defendants have produced uncontraverted evidence that the cells in the SHU used the same ventilation system as in the rest of the prison, and that the front of the cells are entirely covered by bars, which allow for air to enter naturally from the front. See Richards Decl. ¶¶ 6-7. When everything is functioning, this air is exhausted through the rear walls of the cells and then discharged into the atmosphere by attic exhaust fans that pull the air up from the backs of the cells. Id. at ¶ 6. Richards has testified that these exhaust fans are not presently operational, but a contract has been awarded to replace the ventilation system and one cell block has thus far been renovated. The plaintiff has not produced sufficient evidence to conclude that the problem was sufficiently serious to raise an Eighth Amendment claim while he was in the SHU. Compare Whitley, 1997 WL 659100, at *4 (allowing Eighth Amendment claim to proceed where, after repeated requests, officials failed to move prisoner with asthma from a cell with particularly poor ventilation, due to its proximity to a clothes dryer exhaust, and the failure aggravated her asthma condition.) Moreover, the record does not reveal any deliberate indifference to this problem because Green Haven has already awarded a contract to replace the ventilation system, and the plaintiff has submitted no evidence of delays in responding to complaints directed at this specific problem.
With regard to the plaintiff's complaints about loss of exercise, this Court has already recognized on the prior motion to dismiss that "some opportunity for exercise must be afforded to prisoners" under the Eighth Amendment. See Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985). When determining whether this right has been violated, courts have considered the following factors: "(1) the duration of the deprivation, (2) the extent of the deprivation, (3) the availability of other out-of-cell activities, (4) the opportunity for in-cell exercise, and (5) the justification for the deprivation." Davidson v. Chestnut, 96 Civ. 1228, 1998 WL 436527, at *2 (S.D.N.Y. July 28, 1998). The Court of Appeals for the Second Circuit has found that an hour of daily exercise is generally sufficient to comport with the Eighth Amendment., although the Court has not held that one hour of exercise is the constitutional minimum. See Anderson, 757 F.2d at 35.
In this case, the parties dispute the number of days of exercise or recreation that the plaintiff was denied. The plaintiff alleges that he was denied his daily-allotted hour of exercise on approximately two thirds of the days he was in the SHU. However, the plaintiff only filed one grievance about this alleged problem, and this grievance was directed to a particular occasion, when C.O. Kealty and C.O. Cruise denied him his one hour of exercise allegedly due to the length of his fingernails. See Pl.'s Ex. A at 10, 11. Moreover, the plaintiff's Amended Complaint alleges the denial of exercise on only the day that C.O. Kealty and C.O. Cruise allegedly denied him exercise because of the length of his fingernails. See Amend. Compl. ¶ 13. The defendants contend that on the day in question, the plaintiff failed to sign up for exercise. See Tierney Decl. ¶ 16 Ex. C. The denial of one hour of exercise on one day is not sufficiently serious to state an Eighth Amendment claim.See, e.g., May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (denial of exercise for twenty-one days did not violate Eighth Amendment); Young v. Scully, No. 91 Civ. 4332, 1993 WL 88144, at *5 (S.D.N.Y. Mar. 22, 1993) (denial of exercise for several days was not a violation of the Eighth Amendment). In any event, the defendants could not have been deliberately indifferent to any larger problem without reasonably clear notification from the plaintiff. See also 42 U.S.C. § 1997e(a) (requiring that no action with respect to prison conditions be brought until such administrative remedies as are available are exhausted); Porter v. Nussle, 122 S.Ct. 983, 987-92 (2002).
There is, moreover, no dispute that under local SHU rules, the plaintiff was allowed one hour of exercise in the yard per day, and that this hour was only taken away under the rules, when it was, due either to the length of the plaintiff's fingernails or the plaintiff's failure to sign up for exercise. To the extent that he is raising a broader claim, the plaintiff appears to argue that the adoption of these rules and the actions taken by some of the defendants pursuant to these rules violated his Eighth Amendment rights.
A policy of requiring inmates in the SHU to cut their fingernails before entering the yard for their daily recreation or exercise is reasonably related to the legitimate penological interests of a prison of assuring safety. See Turner v. Safely, 482 U.S. 78, 89 (1987). The defendants Selsky and Tierney have also testified that in order to coordinate and schedule prison activities, it is common to have a walk through the prison to identify what services each inmate intends to participate in for a given day. See Selsky Decl. ¶¶ 20-21; Tierney Decl. ¶ 15. According to Selsky, if an inmate does not identify the services he wishes to participate in for that day during the sign up period, it is unlikely that he may choose to participate at a later time.See Selsky Decl. ¶ 23. This practice is not unreasonable in light of the practical objectives in running a prison.
C.
The plaintiff's final Eighth Amendment claim is based on the allegation that his transfer to Clinton was cruel and unusual punishment because the medical facilities at Clinton are allegedly less adequate than the facilities at Green Haven, and because he was transferred without a doctor's order. The plaintiff has raised precisely the same claim in another action before this Court, and the claim should be dismissed for the reasons stated in the motion for summary judgment in that case. See Amaker v. Haponik, 98 Civ. 2663.
V.
The defendants next move for summary judgment dismissing the plaintiff's claims for denial of the free exercise of his religion. The plaintiff alleges that he is a Muslim who practices this faith pursuant to the Nation of Islam. See Amend. Compl. ¶ 19. The plaintiff bases his free exercise claim on the allegation that Clinton insufficiently accommodates his religious diet and provides insufficient opportunities to attend religious study meetings.
The standard for determining whether a prison official's conduct violates an inmate's First Amendment free exercise rights "is one of reasonableness, taking into account whether the particular regulation affecting some constitutional right asserted by a prisoner is `reasonably related to legitimate penological interests.'" Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (quoting Turner, 482 U.S. at 89)); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). It is "well established that prisoners have a constitutional right to participate in congregate religious services." Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). Moreover, "[c]onfinement in keeplock does not deprive prisoners of this right." Id. Similarly, where costs are not prohibitive and accommodation is administratively feasible, "[p]risoners have a right `to receive diets consistent with their religious scruples.'" Benjamin, 905 F.2d at 579 (quoting Kahane v. Carlson, 527 F.2d 492, 495 (2d Cir. 1975)).
In this case, the defendants have produced evidence that Clinton provides two days of study groups per week specifically for the Nation of Islam and employs a Nation of Islam Chaplain, Imam Abdullah Hajar, who conducts those religious classes at the facility. See Declaration of Imam Abdullah Hajar dated April 12, 2001 ("Hajar Decl."), at ¶¶ 1-7. According to Imam Hajar, Clinton provides for weekly services for Nation of Islam followers, which are conducted by another Nation of Islam Minister, Courtney Muhammad. See id. ¶ 6. Imam Hajar has also testified that the plaintiff has participated in the Nation of Islam classes during his time at Clinton. See id. ¶ 7 Ex. A.
With regard to dietary accommodations, Imam Hajar has testified that he meets with the Food Services Administrator at Clinton twice annually to discuss the dietary needs for holidays and festivals for both Muslims and the Nation of Islam. See id. at ¶¶ 8-10. The defendants have also produced evidence that DOCS not only has a Ramadan Fast menu to accommodate the dietary requirements for Muslims but also specifies foods for the Nation of Islam Fast. See Declaration of Elizabeth Culkin dated April 12, 2001 ("Culkin Decl."), at ¶¶ 4-11 Ex. B; Hajar Decl. ¶¶ 10-11. Imam Hajar has testified that "[b]ased on my experience, the Food Administration at Clinton sufficiently provides and adequately addresses the dietary requirements for the Nation of Islam." Hajar Decl. ¶ 11.
In his opposition papers, the plaintiff responds to this evidence by alleging that Imam Hajar's tenets concerning the Nation of Islam differ from his own in some unspecified ways. However, the evidence in the record clearly establishes significant efforts on the part of Clinton to accommodate the religious tenets of the Nation of Islam, and no material evidence that the plaintiff's ability to exercise this religion has been unreasonably burdened in any way at Clinton. See. e.g., Muhammad v. City of New York Dep't of Corr. Servs., 904 F. Supp. 161, 189 90, 197 (S.D.N.Y. 1995) (citing Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995)) (separate congregation services for Nation of Islam observers was not required when less denominalized services were available to inmates of all religions).
In any event, the plaintiff's claims for violation of his right to the free exercise of his religion would have to be dismissed against the defendants at Green Haven — Artuz, Kealty, Skidgell, Nagy, Wilson, Tierney, Schneider, Thacker, Kaufman, Haponik, Smith, Tomaszewski, Cruise, Montegari and Selsky — because the plaintiff has produced no evidence indicating that they were involved in any way in the types of religious services or dietary plans that the plaintiff had access to at Clinton.
VI
The defendants next move for summary judgment on the plaintiff's claims that he was denied court access. Prisoners have a First Amendment right of access to the courts, which is violated if prison officials deprive prisoners of meaningful access to the courts. See Lewis v. Casey, 518 U.S. 343, 346, 351 (1996). This constitutional right can, in turn, give rise to a number of derivative rights, including the right to access legal materials needed to prepare certain cases, including materials from a law library, and to send and receive legal mail. See, e.g., Bounds v. Smith, 430 U.S. 817 (1977) (access to law library); Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, at *4 (S.D.N.Y. March 29, 2001) (legal mail); see also Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (explaining distinction between constitutional right to court access and these derivative rights). The Court of Appeals explained in Benjamin that in order to succeed on a claim for violation of one of these derivative rights, a prisoner must demonstrate that the violation caused the prisoner actual injury because the judicial branch must leave to political branches the choice among alternative means to achieve meaningful access to the courts. See Benjamin, 264 F.3d at 185.In order to establish a constitutional violation based on a denial of a means to court access, an inmate must show that a prison official deliberately or maliciously violated one of these derivative rights and that the violation caused or will cause the prisoner actual injury, in the sense that "a `nonfrivolous legal claim had been frustrated or was being impeded' due to the actions of prison officials." Warburton v. Underwood, 2 F. Supp.2d 306, 312 (W.D.N.Y. 1998) (quoting Lewis, 518 U.S. at 353); see also Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997); Cancel, 2001 WL 303713, at *4.
The actual injury requirement derives from the constitutional principle of standing. See Benjamin, 264 F.3d at 185. In addition, prison administrators may place reasonable restrictions on a prisoner's constitutional rights, so long as these restrictions are "reasonably related to legitimate penological interests." Turner, 482 U.S. at 89. Prison administrators should be "afforded considerable deference" with respect to how, "in the interest of security, [to] regulate the relations between prisoners and the outside world." Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
In this case, the plaintiff's first claim for violation of his right to court access is based on the allegation that he was denied his family visitation on April 26, 1997. The right to court access does not ordinarily entail a right to a family visit. However, the plaintiff alleges that the purpose of this particular visit was for his family to pick up litigation materials for his Article 78 proceeding, and that he suffered actual injury because he could not give his family a number of papers to file in that action and hence missed a filing deadline. However, the plaintiff has not produced any evidence that he tried to file the papers himself from Green Haven or tried to move for an extension. There is also nothing in the record to indicate that transferring the documents to his family was the only way for him to file an appeal. Hence, there is no evidence that this denial of a family visit interfered with his ability to access the courts.
In any event, the plaintiff has testified that he did not tell C.O.s Skidgell, Kaufmann or Kealty that he needed to transfer any files to his family on that day, or that he might miss any scheduling deadlines if he failed to do so. See Foo Decl. Ex. B at 57-64. Hence, there is no evidence that these officers could have known that the denial might have caused any actual injury to his ability meaningfully to access the courts or could have fabricated any allegations in order to cause this actual injury. The defendant Haponik made the decision to deny the plaintiff his visit on April 26, 1997 upon learning of the behavior alleged in the Misbehavior Report issued on that day by C.O. Skidgell, which included alleged threats, violent behavior and arson by the plaintiff just before he was to be escorted to his visitation. See Inmate Misbehavior Report dated April 26, 1997 (issued by C.O. Skidgell), attached in Ex. A Tierney Decl.; Haponik Decl. ¶ 12-18; Declaration of Michael Nagy dated March 2001 ("Nagy Decl."), at ¶¶ 7-11; Tierney Decl. ¶¶ 8-10; Declaration of Steven Skidgell, dated March, 2001 ("Skidgell Decl."), ¶¶ 7-12. As discussed more fully below, there is nothing in the record to suggest that there was no probable cause for the allegations in the Report. Hence, the denial of the family visitation was reasonably related to the legitimate penological interest of ensuring safety and order in the facility.
The plaintiff's second claim for violation of his right to court access is based on the allegation that on June 5, 1997, Assistant Attorney General McGrier canceled his telephone conference call with Magistrate Judge Heckman in his proceedings in the United States District Court for the Western District of New York, and that either McGrier or the defendant Smith allegedly "falsely told the court [that the plaintiff] refused to come to the call." Amend. Compl. ¶ 14. The plaintiff alleges that this conduct caused him actual injury because Magistrate Judge Heckman denied a pending motion and noted in the decision that the plaintiff had not appeared for this call. See Pl.'s Ex. B.
However, the conference call was for oral argument on a motion for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure for alleged failures to produce adequate responses to interrogatories and document requests. Although Magistrate Judge Heckman noted that the plaintiff did not appear for this scheduled call, this was the plaintiff's second nonappearance, and the Magistrate Judge did not decide the motion on that basis. Rather, the Magistrate Judge decided to take the motion under advisement and, upon review of the papers, the Magistrate Judge dismissed it on the merits. See Amaker v. Foley, 98-CV-0843, slip op. (W.D.N.Y. June 10, 1997) (order). This decision was affirmed by Judge Elfvin, who described all of the circumstances including the plaintiff's failure to appear on two occasions and then determined that the denial of sanctions was not clearly erroneous. See Amaker v. Foley, 98-CV-0843, slip op. (W.D.N.Y. Aug. 22, 1997). The plaintiff does not have a right to oral argument on every discovery motion, and there is nothing in the record to indicate that even if the plaintiff had argued his motion he would have been entitled to the sanctions he sought.
Moreover, although there is evidence in the record that Assistant Attorney General McGrier communicated to officials at Green Haven that the call was canceled, and that he may have participated in the decision to cancel the call, see Foo Decl. Ex. F, the plaintiff has not produced evidence from which a reasonable juror could conclude that either Wilson or Smith participated in this decision. The plaintiff has admitted in his deposition testimony that he does not have any personal knowledge that Smith prevented him from receiving a call, and that the plaintiff infers this only from an alleged statement of C.O. Austin to the effect that Smith was in the office that day. See Amaker Dep. at 161, attached as Ex. B to Foo Decl. The plaintiff has not produced any direct testimony from Austin in this case. Moreover, the plaintiff's only basis for the claim that Wilson prevented him from receiving a call is that Wilson was allegedly "very communicative" with one of the Assistant Attorney Generals in Buffalo before the date of the alleged call. See id. at 160-67. These allegations are too insubstantial to raise a material issue of fact as to whether Smith or Wilson prevented any actual conference call from taking place.
In sum, the plaintiff's claims for denial of court access should be dismissed in their entirety.
VII.
The defendants next move for summary judgment dismissing the plaintiff's claims for retaliation. The plaintiff claims that the defendants engaged in the challenged conduct discussed in the previous sections and filed false misbehavior reports against him in retaliation for his filing of grievances and lawsuits against officials at Green Haven.
In order to establish a claim for retaliation in the prison context, a plaintiff bears the burden of showing that: (1) he was engaging in "conduct . . . [that] was constitutionally protected"; and (2) "the protected conduct was a substantial or motivating factor in the prison officials'" actions against the plaintiff. Davidson v. Chestnut, 193 F.3d 144, 148 (2d Cir. 1999) (per curiam) (quotation marks omitted). If a plaintiff claiming retaliation carries this burden, a defendant can still defeat a claim of retaliation by establishing by a preponderance of the evidence that the defendant would have acted in the same way absent the protected conduct. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The Court of Appeals for the Second Circuit has warned that retaliation claims by prisoners are "prone to abuse" in that retaliation can be alleged for almost any decision an inmate dislikes. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
In this case, the plaintiff correctly argues that he engaged in protected activity when he filed grievances and lawsuits against these defendants. See Bounds, 430 U.S. at 821-32 (1977) (lawsuits); Graham v. Henderson, 89 F.3d 75, (2d Cir. 1996) (grievances). However, the plaintiff supports his claims of retaliation primarily with conclusory allegations, which are insufficient to raise a material issue of fact.See, e.g., Flaherty, 713 F.2d at 13 (holding that allegations, suspicions and adverse actions are insufficient to establish retaliation absent evidence that gives substance to the claim of intent) The plaintiff has consistently engaged in protected activity during his entire period at Green Haven, but, with the exception of the transfer to Clinton, he has not identified any protected activities that occurred shortly before the conduct he challenges and that were directed at the specific defendants who engaged in the conduct. In addition, for the reasons discussed above, there were legitimate penological reasons to deny the plaintiff his family visit on April 26, 1997 and for requiring the plaintiff to trim his fingernails and sign up for exercise. There have also been no constitutional violations in this case.
With regard to the transfer to Clinton, the plaintiff has raised precisely the same claim that this transfer was retalitory in another case before this Court, and the claim should be dismissed for the same reasons stated in the Opinion and Order disposing of that claim on a motion for summary judgment in that case. See Amaker v. Haponik, 98 Civ. 2663. The plaintiff has presented no additional evidence to support his claim of retaliation.
The plaintiff's only remaining claims for retaliation relate to the two misbehavior reports issued on August 16, 1996 and April 26, 1997. An inmate has no inherent right to be free from false misbehavior reports.See Freeman v. Rideout, 808 F.2d 949. 951 (2d Cir. 1986). However, false misbehavior reports made in retaliation for a prisoner exercising a constitutional right is actionable under § 1983. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988)). The plaintiff correctly argues that both of the misbehavior reports in question were ultimately dismissed on appeal.
The August 16, 1996 Misbehavior Report relating to the damaged law books was issued by the defendant Tomazsewki. The record is devoid of any evidence as to why Tomaszewski would have been retaliating against the plaintiff or what the basis for the alleged retaliation was. This appears to be the only incident between Tomazsewski and the plaintiff. See Tomaszewski Decl. at ¶ 16. Moreover, there was at least some basis for a misbehavior report concerning the books because it appears that the plaintiff left the books on the floor, where they were visibly damaged by flooding, and the plaintiff was warned about that on the appeal of his grievance. See P1.'s Ex. B. Thus, the plaintiff's conclusory allegations of retaliation are insufficient.
Similarly, although the charges in the plaintiff's Misbehavior Report dated April 27, 1996 were ultimately dismissed, the record is devoid of any reason why the defendant Skidgell, who issued this report, would have been retaliating against the plaintiff. See Skidgell Decl. ¶¶ 7-12. The plaintiff does not allege that he had filed any complaints against Skidgell prior to this event or that there had been any prior incidents between them. Finally, the plaintiff's own papers and affidavits submitted in support of his opposition to the misbehavior report also confirm that there was a growing charged atmosphere in the SHU while the plaintiff waited to be escorted to his family visit, and that the plaintiff had begun yelling and engaging in other actions to get the prison officials' attention. See Foo Decl. Ex. C. This conduct could have been reasonably viewed as having provided a basis for issuing a misbehavior report, and the other defendants could have reasonably relied on the report. Hence, the plaintiff's conclusory allegations of retaliation relating to this report are insufficient to survive the defendants' motion for summary judgment.
In sum, all of the plaintiff's claims concerning retaliation must be dismissed.
The plaintiff originally raised a number of related equal protection claims pursuant to 42 U.S.C. § 1981, 1985(3) 1986. alleging racially discriminatory motivations in addition to retaliation, as well as a number of claims for conspiracy. The Court found that these allegations were insufficient but gave the plaintiff leave to replead.See Amaker v. Goord, 1999 WL 511990, at *9-11. The plaintiff repleaded his conspiracy claims, and the Court again dismissed them on the same grounds. See Amaker v. Goord, 2000 WL 718438, at *6. On this motion, the plaintiff has not attempted to argue that any of the actions in question were motivated by racial bias, and the evidence establishes that the actions in question were taken for legitimate non-discriminatory reasons rather than because of the plaintiff's race. See. e.g., Nagy Decl. ¶ 11; Thacker Decl. ¶ 16; Tomazweski Decl. ¶¶ 11-12; Tierney Decl. ¶¶ 10-11, 16-20; Skidgell Decl. ¶¶ 11-12. As explained above, the actions were also not taken because of retaliation for the plaintiff's protected activities.
VIII.
The foregoing reasons are sufficient to dismiss all of the plaintiff's claims against all of the defendants. However, the defendants also correctly argue that some of the plaintiff's claims as directed at the defendants Goord, Haponik, Artuz and Schneider, in their supervisory capacities, should also be dismissed for lack of personal involvement. In order to establish that the supervisor of a prison system is liable for a constitutional violation, an inmate must generally establish that the supervisor was personally involved in the violation. See Colon v. Coughlin, 58 F.3d 865. 873 (2d Cir. 1995). In particular, a plaintiff must establish either that: (i) the defendant participated directly in the alleged constitutional violation; (ii) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (iii) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (iv) the defendant was grossly negligent in supervising subordinates who committed the wrongful act; or (v) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).The plaintiff alleges that Goord is responsible for the alleged violations of his right to court access, the Eighth Amendment and his right to freely exercise his religion because the plaintiff and/or the plaintiff's mother sent letters of complaint to Goord regarding the problems that form the bases of the plaintiff's complaints and that Goord failed to remedy the alleged wrongs. However, Goord has testified that he receives thousands of letters each year as the Commissioner and Chief Executive Officer of DOCS, and that his office generally forwarded the letters to the appropriate personnel to handle the problems in question.See Goord Decl. ¶¶ 3-4; 8-10. The plaintiff's complaints were handled by other officials at Green Haven, and Goord has testified that he had no personal knowledge of the contents of the complaints. See id. at ¶¶ 7, 10-11, 17. The one letter to the plaintiff's mother that was prepared for Goord's signature related to mail and visitation rights and indicated that the matter was handled by Superintendent Artuz. See id. at ¶ 10. In these circumstances, the plaintiff has not produced sufficient evidence to raise a genuine issue of material fact that Goord was personally responsible for failing to do his part in remedying a known wrong. See, e.g., Greenwaldt v. Coughlin, 93 Civ. 6551, 1995 WL 232736, at *4 (S.D.N.Y. April 19, 1995) (numerous letters sent by pro se inmate to DOCS Commisstoner, where complaints were delegated to other prison officials, were insufficient to establish Commissioner's personal liability); Cepeda v. Coughlin, 91 Civ. 2469, 1995 WL 23566 (S.D.N.Y. Jan. 19, 1995) (letter sent by inmate to Commissioner of DOCS did not establish Commissioner's personal involvement) Garrido v. Coughlin, 716 F. Supp. 98 (S.D.N.Y. 1989) (Commissioner of DOCS not personally liable for ignoring plaintiff's letter of protest and request for an investigation)
Similarly, the plaintiff has failed to produce any evidence of the personal involvement of Artuz or Schneider in the alleged Eighth Amendment violations in this case. The plaintiff has made allegations that Artuz and Schneider knew of his complaints concerning lighting and ventilation but the allegations are conclusory and the plaintiff provides no direct testimony that he either spoke with them and has submitted no copies of letters of complaint in this regard. The plaintiff has thus failed to produce any material evidence of their personal involvement in these events. These facts provide an additional reason to dismiss the plaintiff's Eighth Amendment claims against Artuz and Schneider.
IX.
In his opposition papers, the plaintiff for the first time makes a number of new allegations and claims that have never been raised before in this case. In particular he argues that: (i) he may have been subjected to asbestos while in the SHU; (ii) he was deprived of due process in an unspecified prison disciplinary hearing, a claim that may be duplicative of a due process claim he has raised in a related case before this Court, and which this Court has dismissed, see Amaker v. Coombe, 96 Civ. 1622; (iii) the Nation of Islam Chaplain at Green Haven violates the plaintiff's right to practice the religion of the Nation of Islam because the Chaplain's tenets differ somewhat from the plaintiff's practice of the religion of the Nation of Islam. However, the plaintiff cannot raise new claims for the first time in his opposition papers in a motion for summary judgment. See McAllister v. New York City Police Dep't, 49 F. Supp.2d 688 (S.D.N.Y. 1999); Giovia v. Kiamesha Concord, Inc., 92 Civ. 3935, 1993 WL 539530, at *5 (S.D.N.Y. Dec. 23, 1993); Martin Ice Cream Co. v. Chipwich. Inc., 554 F. Supp. 933, 940 n. 15 (S.D.N Y 1983);Medical Arts Pharmacy, Inc. v. Blue Cross Blue Shield, Inc., 518 F. Supp. 1100, 1109 (D. Conn. 1981), aff'd, 675 F.2d 502 (2d Cir. 1982). The plaintiff's claim against the prison chaplain also appears frivolous on its face.
CONCLUSION
The Court has carefully considered each of the parties' other arguments in this case and finds them to be either moot or without merit. For the foregoing reasons, the defenants' motion for summary judgment is granted in its entirety. The plaintiff's motion for additional discovery and cross-motion for summary judgment are denied. The Clerk of the Court is directed to enter judgment in favor of the defendants and to close this case.